LAW PROFESSOR JABS BAR EXAM
It takes a minute or two to realize that Daniel Solove is pulling our collective
legs. The title of his article in the May 2006 issue of the Michigan Law Review
is “The
Multistate Bar Exam as a Theory of Law,” and it’s got the usual
academic citations and deadly serious, pedantic tone.
“What is the most widely read work of jurisprudence by those in the
legal profession?”
asks Solove, an associate professor at George Washington Law School. “Is
it H.L.A. Hart’s The Concept of Law? Ronald Dworkin’s Law’s
Empire? No. It is actually the Multistate Bar Exam (‘Bar
Exam’) . . .
“Each year, thousands of lawyers-to-be ponder over it, learning the profound teachings on the meaning of the law. They study it for months, devoting more time to it than practically any other jurisprudential text. It therefore comes as a great surprise that such a widely read and studied work has barely received scholarly attention . . . It is time to rectify this situation and put the Bar Exam in its place as the great work of jurisprudence that it is.”
Solove then goes on to praise the “beautiful, thick acid-free paper designed for indelibility;” the “pluralistic” form of its presentation in that its overarching teachings remain the same even though it changes twice a year; its recognition that right versus wrong is too simplistic a way to understand the law so it asks that one choose the “best” answer; its reliance on “legal realism” in demonstrating the way the law touches the lives of real individuals.
An expert in privacy law who passed the bars in Pennsylvania and Washington, D.C., Solove, with tongue firmly in cheek, is awestruck by the bar exam's ability to avoid nuances of the law. The bar exam, he writes, skillfully views as irrelevant the discretion of prosecutors, lawyers, judges and juries, repudiating “Judge John Noonan’s observation that ‘the law lives in persons’ . . . But yet, one should avoid hastily concluding that the Bar Exam’s vision of the law is not humanistic. Its conception of the law is far more complex. The Bar Exam is, in fact, a very humanistic document. The reader hears harrowing stories of great loss and terrible wrongdoing. The reader witnesses horrible crimes, bungled contracts, corporate malfeasance, and wretched accidents. Each story involves people who have real lives, who experience love or heartbreak, triumph or devastation . . . Ah, the humanity!”
In a phone interview from his George Washington office, Solove, who teaches information privacy law, criminal procedure, criminal law and law and literature, said he is very serious in his belief that the Multistate Bar Exam is a "waste of time" that has no connection to a person's ability to practice law. But, he added, he wanted to take a humorous approach in the Law Review to the issue and poke "a little bit of fun at its understanding of the law."
"To think you can reduce the law to this set of objective, multiple-choice questions is really silly," he said. The law is really about how a lawyer makes an argument, how facts are developed, how a case is made. Writing, thinking and reasoning skills are what are important in becoming a good lawyer. "The bar exam distorts things in its quest to reduce the essence of law to a set of objective questions."
Solove would much rather see law students doing pro bono work as a way of gaining experience, learning about the law as it applies in the real world and helping those in need than spending considerable money and time on the bar exam. "At the end of the day, I'm not sure what the bar really tests other than whether students memorize a bunch of rules and that they take the appropriate bar prep courses."
In the Law Review article, Solove said he used the July 1998 Multistate Bar Exam for his research. "To truly understand the Bar Exam, one must read through all its physical manifestations, but reading through more than one Bar Exam was more than this author could bear, notwithstanding the great insights that it would have clearly produced. I therefore leave further work on other Bar Exams for future scholars in this young, yet hopefully growing, new field of study."
--Diane Curtis